Court offers guidelines on when to unmask anonymous posters

A company that was accused of software piracy has turned around and sued the …

In the US, the right to free speech is construed as also protecting the anonymity of the person doing the speaking. Provided that the content, be it spoken or written, violates no laws, citizens have the right to fulminate in public fora without said public being aware of their identity. Courts have also extended this protection to anonymous Internet communications, and are now being asked to weigh in on a related issue: when do accusations of wrongdoing justify the removal of anonymity from the sources of anonymous statements made via the Internet.

The precedents that have been set so far have been a bit mixed. In cases involving defamation, a Virginia court has determined that plaintiffs need only to show that they have a "good faith basis" for their accusations in order to have an otherwise anonymous defendant named. In contrast, New Jersey courts have decided that each claim against a defendant has to be supported by evidence. The latest to weigh in is the District of Columbia's Court of Appeals, which is tackling a case in which a John Doe defendant lodged anonymous accusations of software piracy against a company, which has sued him for defamation. The DC court ruled that the case may proceed, and provided guidelines that the trial judge should use in order to determine whether the defendant should be unmasked.

The case started with an anonymous complaint submitted to the Software & Information Industry Association, which (much like the Business Software Alliance), allows anyone to finger institutions for using pirated software. In this case, the person who submitted the complaint suggested that a company that makes software for the Defense Department, Solers, Inc., was engaged in piracy. The SIIA sent Solers a threatening letter, suggesting it undertake an audit of its compliance and return the results.

Solers argued that it was in compliance, and requested the identity of the John Doe who had turned it in. When the SIIA declined to identify him, the company filed a complaint, alleging that the anonymous tip amounted to defamation, and that it interfered with the company's ability to do business. As part of the suit, Solers subpoenaed the SIIA, demanding it turn over all the information it had on John Doe. The SIIA went to court in an attempt to quash the subpoena. The presiding judge agreed, but Solers appealed, leading to the current decision.

The appeals court, noting that DC courts had no precedent for this situation, examined the varied decisions handed down in other areas. It found the Virginia standard—a "good faith basis" for the accusations—far too lax, given the importance that anonymity has been granted in the US. Instead, the court laid out guidelines that are far closer to the New Jersey standard:

the court should: (1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim, (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served, (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash, (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and (5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.

In short, the plaintiff has to provide evidence that its claims are reasonable and the identity of the defendant is needed before the suit could continue. The defendant should also be given the opportunity to attempt to block his or her unmasking in court.

As for the case itself, the decision to throw out the initial subpoena was made in part because Solers hadn't bothered to provide evidential support for its charges; given that there was no precedent to suggest it needed to do so, the Appeals Court ruled that it could go back and try to demonstrate its need to have the subpoena executed to the trial court.

The Appeals Court, however, recognized that the mechanism for submitting an anonymous tip was substantially different from that involved in most other precedents, which involved publicly accessible blog and forum posts. "For all that we know at this point," the Court wrote, "the transmission of his accusations was not substantively different from dropping a letter into the mail, making a phone call, or slipping a note under the door." The implication clearly being that an equivalent action would not justify having the subpoena executed.

17 Reader Comments

the court should: (1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim, (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served, (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash, (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and (5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.

Sounds reasonable to me. Individuals and businesses alike do need a recourse for defamation via on-line forums and the like. The above guidelines suggested seem plenty sane to me. You need to prove the allegations are indeed false and were made with malice as well as give the person named time to file his own claim in defense.

Maybe I'm missing the point, but wouldn't the first allegation come first? If the anonymous tipster was correct and the company pirates software, there wouldn't be any defamation. Not if the claims are true.

Were the courts under my rule, I would focus on that first before the whole defamation thing.

Originally posted by 4nd:Maybe I'm missing the point, but wouldn't the first allegation come first? If the anonymous tipster was correct and the company pirates software, there wouldn't be any defamation. Not if the claims are true.

Thats what #1 covers - the software company would have to prove that they were indeed defamed, which in this case would mean that at the time of the tip to the SIIA they were completely legal on their software licensing. If they were legal, then they can move on to the next step, and eventually to unmasking the tipster.

Originally posted by Nekojin:Aren't whistle-blowers protected under Federal Law? I know I've seen posters around the workplace to that effect.

IANAL, but I know there is SOME whistle-blower protection. But that assumes the complainant is protected as a whistle-blower and that the accusation is true. If I just randomly say that, say, Ars uses pirated software, I would be just blowing smoke (I hope). I don't have any connection with Ars, so even if I happened to be right, I don't think whistle-blower protection extends to me. And that assumes that the claim is true; Solers is obviously arguing that it's not, and if it's not true, there's no whistle being blown.

Originally posted by jwildstr:IANAL, but I know there is SOME whistle-blower protection. But that assumes the complainant is protected as a whistle-blower and that the accusation is true. If I just randomly say that, say, Ars uses pirated software, I would be just blowing smoke (I hope). I don't have any connection with Ars, so even if I happened to be right, I don't think whistle-blower protection extends to me. And that assumes that the claim is true; Solers is obviously arguing that it's not, and if it's not true, there's no whistle being blown.

(Disclaimer: I, too, am not a lawyer.)

Yes, but this is way more serious than you making isolated claims with no reasonable basis in fact: if the plaintiff can show a reasonable possibility that the claims could be false (possibly by flatly lying and covering evidence up), then they can expose the whistleblower and then fight the whistleblower's claims by attacking his credibility and basically destroying his life.

If this ruling applies to the general case of whistleblowers, no one in their right mind would consider the shield protection adequate.

Originally posted by Nekojin:Aren't whistle-blowers protected under Federal Law? I know I've seen posters around the workplace to that effect.

They might be but this is not about whistle blowing but about slandering a companies good name for whatever reason.Note that the company HAS to prove the allegations were false before they can proceed to acquire the name of the whistle blower.

It seems to me a lot of commenters are missing the fact that this is not about anonymous posting on a forum/wiki/blog/whatever.

This was a tip to an organization dedicated to fighting piracy - not public slander/defamation. As such it is most CERTAINLY whistle-blowing whether it turns out to be true or not.

Now how the SIIA handled the notice is another matter - if it sent a private letter (which the story seems to indicate) then there was NEVER any slander/defamation actually happening - since those have to be public strangely enough. If the SIIA went public with the allegation then the company's beef needs to be with SIIA and their handling of an anonymous tip.

But in no way EVER can the anonymous tipster ever be considered other than a whistle-blower. The guide-lines the court lays out are reasonable and valid for a public claim - but that's just not the case here and I don't see how the courts don't recognize this right away.

I see the game plan now. How do you control information? By destroying the internet. How do you destroy the internet? Make it so the laws protecting your speech is ironclad UNLESS PERFORMED VIA A COMPUTER. After all, since it is technically possible to id the guy, it therefore must be done!

So let's get to the point where no one in his right mind would use the internet to send a message and the tyrants win.

@Kazper: that makes sense to me. I do have to wonder where the defamation comes from in a private company/investigation of legality. It seems like there's some serious questions raised from this. Unless there's a piece being left out about SIIA going public, it sounds far more like Solers is trying to get attention for some reason or another.

Kazper, if Solers was sued by SIIA in court, those documents would typically be a matter of public record, and thus an accusation of infringement <i>would</i> be public defamation (if they were in actuality current on their licenses).

IANAL but I would think that defamation would require some kind of public statement typically. If I walk up to Johnny Walker and tell him his alcohol sucks and probably has piss in it, that's not defamation. If I stood on a street corner with a megaphone saying that, it can be construed as defamation.

I would that in this case the tipster acted more like the first example. They anonymously tipped off a company about alleged software piracy, who then wrote a letter, non-public (I assume anyways), to the company. There is no defamation here as far as I can see.

Originally posted by Sulla:Kazper, if Solers was sued by SIIA in court, those documents would typically be a matter of public record, and thus an accusation of infringement would be public defamation (if they were in actuality current on their licenses).

IF that's what happened (the story seems to indicate otherwise), then the ones doing the defamation is SIIA - not the anomymous tipster. My point stands unchanged.